ISHWAR PATANGE AND ORS. V. THE STATE OF MAHARASHTRA AND ORS.
(WRIT PETITION NO. 2924 OF 2020)
SUMMARY OF THE CASE –
- The State Government of Maharashtra, Department of Co-operation, Marketing and Textile issued orders dated 27th January 2020 and 31st January 2020 in vernacular language.
- The order dated 27/01/2020 states that, the State Government by exercising its powers given under Section 157 of the Maharashtra Co-operative Societies Act, 1960 and with the help of Section 73CC has ordered postpone of elections for the Co-operative Societies, District Central Co-operative Bank Ltd. (hereinafter referred to as “the D.C.C. Bank”) and also, Village Level Agricultural Credit Co-op. Societies, Sugar Factories in the State, apart from the ones in which the Hon’ble High Court/ Supreme Court has given directions and the ones in which the nomination forms have been accepted, for a period of 3 months.
- The said postponement of election has been ordered on the grounds stating that sufficient man power is not available for conducting the elections, as most of the officers would be engaged in the implementation of the government scheme namely – ‘Mahatma Jyotirao Phule Shetkari Karjamukti Yojana 2019’.
- Further the order dated 31/01/2020 stated that the total co-operative societies eligible for election under category ‘A’,’B’,’C’,’D’, are 22,680 and a massive number of man power would be needed for the same.
- Hence, the elections for co-operative housing societies with member count up to 250 or less, have been postponed up to 29/02/2020. The election for D.C.C. Banks and Village Level Agricultural Credit Co-op. Societies has been postponed for 3 months as per the order dated 27/01/2020. Therefore, the elections for co-operative societies apart from those with member count upto 250 or less, and, in which the Hon’ble High Court/ Supreme Court has given directions and the ones in which the nomination forms have been accepted, have been postponed for a period of 3 months from the date of said order, that is, 31/01/2020.
- Therefore, being aggrieved by the act of the State Government with regard to the postponement of the elections of the D.C.C. Banks and Village Level Agricultural Credit Co-op. Societies and Sugar Factories all over the state of Maharashtra totally, the petitioners have approached the Hon’ble High Court of Bombay Bench at Aurangabad by invoking Article 226 of the Constitution of India.
- The impugned orders/ communications dated 27 January, 2020 and dated 31 January, 2020 issued by respondent no. 1, purportedly under Section 157 and 73CC of M.C.S. Act, 1960 thereby postponing the elections of D.C.C. Banks, Sugar Factories and Village Level Agricultural Credit Co-operative Societies throughout the state for a period of further three months are illegal, arbitrary and ultra vires to the constitutional provisions embodied in Article 243zj and 243zk of the Constitution of India and Section 157 and 73CC of M.C.S. Act, 1960, and hence quashed and set aside by the Hon’ble High Court.
- However, it was argued that in light of the current situation of pandemic, such elections cannot be conducted and thus the court held on 23/03/2020 that the District Co- operative Election Officer, the State Government or such other competent authority may take decision with regard the postponement of the election and its process considering the fact and situation and may take such other steps as are permissible and required under the statute
- When the Hon’ble High Court on March 11, 2020 ordered to strike down the government resolution regarding the postponement of election, the court took in account the conditions given under section 73CC of the Maharashtra Co-operative Societies Act, 1960 for postpone of election. According to Section 73CC of the MCS Act 1960, the conditions in which the election can be postponed are scarcity drought, flood, fire or any other natural calamity or rainy season or any election programme, of the State Legislative Assembly or Council or House of the people or a local authority, coinciding with the election programme of any society or class of societies. On studying the provision the bench held that it is evident that the state government has not assigned any reason as mentioned aforesaid. The reason for postponement of general elections throughout the state of Maharashtra for further period of three months for implementation of “Mahatma Jyotiba Phule Shetkari Karjamukti Yojna 2019” in the State. Certainly, the said reason is not covered under Section 73CC of the M.C.S. Act, 1960.
- Further, the State Government placed reliance on its power under Section 157 of the Act, which gives the government power to exempt any society or class of society from provisions of the act by general or special order.
- Where, statutorily, the reasons mentioned by the state does not fall under Section 73CC, such use of power under Section 157 of the Act is completely arbitrary and illegal.
- The court by its order dated 23th March 2020, in light of the situation of the current pandemic brought before by the government pleader, allowed the District Co- operative Election Officer, the State Government or such other competent authority to take decision with regard the postponement of the election and its process considering the fact and situation and to take such other steps as are permissible and required under the statute.
- Constitutionally, Part IX- b deals with the Co-operative Societies. Articles 243zj and 243 zk of the Constitution of India. Article zj (2) of the Constitution of India speaks about number and term of members of board and its office bearers.
- Article 243zj (2) clearly mentions that – the term of office of elected members of the board and its office bearers shall be five years from the date of election and the term of office bearers shall be conterminous with the term of the board.
- Further, Article 243 zk (1) states – not with standing anything contained in any law made by the legislature of a state, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the office of members of the outgoing board.
- Thus, the said decision of the Hon’ble Bench is a clear diversion from the Constitutional Provisions. The elections of the Co-operative Societies, which should have been held before the expiry of the tenure, are now rather postponed to another period of 3 months, that is up to 17th September 2020, according to the Government Regulation dated 17th June 2020.
- Article 243zk starts with ‘notwithstanding anything contained in any law made by the legislature of a state’. It speaks about the supremacy of these provisions of Constitution of India overall the state laws. It is mandate of Constitution to hold election of a board before the expiry of the term.
- This said provision was also brought before the Hon’ble Bench and was taken into account in the quashing order passed on 11th March 2020. In light of these constitutional mandates , it was also observed the above dated order that- paragraph 30- “the Constitution is Suprema Lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. Parliament and the legislature, derives its authority from the Constitution and it has to act within the limits of such authority.”
- Constitution (Ninety Seventh Amendment) Act 2011 relating to the co-operatives was enacted to encourage economic activities of cooperatives which in turn help progress of rural India. One of it’s major feature is ‘specifying a fixed term of five years from the date of election in respect of the elected members of the board and its office bearers; and an authority or body for the conduct of elections to a cooperative society.’
- The statement of objects and reasons attached with the said Constitutional Amendment, contained in brief the genesis and background behind bringing such a Constitutional Amendment. Accordingly, it was quoted that -“there have been instances where elections have been postponed indefinitely and nominated office bearers or administrators remaining in-charge of these institutions for a long time. This reduces the accountability of the management of co-operative societies to their members. Inadequate professionalism in management in many of the co-operative institutions has led to poor services and low productivity. Co- operatives need to run on well established democratic principles and elections held on time and in a free and fair manner. Therefore, there is a need to initiate fundamental reforms to revitalize these institutions in order to ensure their contribution in the economic development of the country and to serve the interests of members and public at large and also to ensure their autonomy, democratic functioning and professional management.”
- This has also been considered in many landmark cases by the Hon’ble Supreme Court.
- The order passed by the High Court allowing the postponement of the elections by State Government without any specific mention of appointment of an administrator for the time being, is violative of the statutory provisions and the above mentioned objective behind the mandate. The said order passed on 23rd March 2020, paves a way for maltreatment of the constitutional mandate. Anything contrary to above said provisions will defeat the object and purpose of Part IX-b of the Constitution.
- According to Section 77A of the MCS Act, 1960 it is also the responsibility of the registrar to appoint an authorized officer (or a committee), on failure of election. The GR dated 17 June 2020, does not mention appointment of such authorized officer (or a committee), to look after the administration of the society until the election of new members.
In case of Dnyandeo Mohan Salunke & Anr. Vs. State of Maharashtra & Ors. it is held that –
‘Sub-Section (2-b) of Section 73-g provides that where for any reason whatsoever election to members of committee are not held before expiry of term or extended term which can be maximum of one year, members including officers of committee shall cease to hold office on expiry of its extended term an shall be deemed to have vacated office. Further there is mandate of Section 73-h(2) that when society ceases to hold office it is responsibility of registrar to take over its management or appoint an administrator but he shall not include any member of outgoing committee on its committee.’
- Furthermore, the GR states that the elections of the co-operative societies to be postponed from whatever stage they are, upto a period of 3 months. However, the elections once set in motion cannot be stayed. As held in – B.D. Manjunath v/s State of Karnataka & Others
‘when the election process has been set in motion, neither the court nor the government has got the power to interfere with the process of election which has been set in motion, as held by the Apex Court as early as in the year 1952 in the case of N.P. Ponnuswami vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem District and Others, which mentions that: ‘the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it’.
The order of the court thereby allowing the government to take decision with regard the postponement of the election and its process considering the facts and situation is scrappy and defective, statutorily as well as constitutionally. The order makes no mention to the government to comply with the procedure regarding the postponement of election, that is, appointment of authorized officer, or, fails to even comply and uphold the objective behind the insertion of Part IX-b of the Constitution.
The elections have been postponed for almost a year as of now since September 2019 to September 2020. In this situation, the Government Resolution as well as the order of the Hon’ble Court does not comply with the procedure as under Section 77a of the Maharashtra Co-operative Societies Act, 1960.
In light of the above mentioned reasons, the order of the court and the government resolution can be postulated to be incomplete and defective.